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Tuesday, January 17, 2012

Institutional Balance

By Yasser Latif Hamdani
Many eminent jurists and legal minds have weighed in on the issue of the Supreme Court’s recent judgements, including the National Reconciliation Ordinance (NRO) judgement and the subsequent painting of the prime minister prima facie as dishonest and in violation of his oath. There are, however, far simpler issues that a humble observer and student of political science and law may raise as to the recent goings on.
The first and foremost issue to my mind is the separation of powers and how the recent rulings of the Supreme Court of Pakistan have affected it.

With all due respect to our Lordships in the Supreme Court, is it not a fact that the US Supreme Court with all its majesty and might cannot declare a president or even a federal judge unfit for office? The impeachment trial that happens in the US Senate is presided over by the Chief Justice but it is the Senate — the upper chamber of the US legislative branch — that decides and votes. In Nixon vs US (1993) — a case pertaining to a federal judge, Nixon — the US Supreme Court refused to interfere in what it termed a political question to be solved through the Senate. The example of the US is important because the US Supreme Court is the foremost practitioner of judicial review having literally invented it in Marbury vs Madison (1803). Our constitution also prescribes ways and means of getting rid of a president or a prime minister, i.e. impeachment of the president or a vote of no-confidence against the prime minister. Is it not true then that the Pakistani Supreme Court does not have jurisdiction in the matter or perhaps that the Pakistani Supreme Court is trying to create jurisdiction where no Supreme Court in the world has gone?
The second issue that agitates me greatly is the overkill in reverence for the judiciary selectively. The irony is that the same mobs who surround and kill judges when they try to rule fairly in controversial cases or who storm the Supreme Court as in the case of the judiciary’s latter day champion, the Pakistan Muslim League-Nawaz (PML-N), seem to suddenly find that the judiciary is the most sacred thing in Pakistan and if the judiciary falls, thus falls Pakistan. The respect for the judiciary is a central feature of the respect for law in the country. However, that does not mean that every decision of the judiciary is immune to criticism. This application of contempt of court is a novel one indeed. Legal scholars, lawyers and jurists have criticised decisions repeatedly all around the world. May I venture to add to that list Jinnah’s name whose conduct in court was often adversarial to the bench. His criticism of the bench, especially as a legislator, was scathing, accusing the Privy Council — the apex court for the Empire — of slaughtering justice on more than one occasion. Perhaps our latter day eminent jurists and champions of the judiciary’s cause know the law better than the man who was hailed as one of the greatest lawyers in the British Empire and whose picture adorns the most hallowed hall of British legal tradition, i.e. the Great Hall of Lincoln’s Inn.
The most sacred institution in a democracy is not an unelected group of civil servants presiding over the courts in the country, though they are more respectable than most. The absolute apex in a democracy is the legislature, i.e. parliament, which is elected by and representative of the general will of the nation as a whole without any distinction. If we hold true to the principle that the constitution holds sway, then it is only parliament that can amend the constitution. All institutions, including the eminently honourable Supreme Court of Pakistan, must in the present constitutional scheme accept the supremacy of the national legislature as the people’s voice.
The Supreme Court has to be the counter-current however. It has to ensure that parliament being reflective of the majority’s will does not trample the minority’s will in a fashion that overprotects the majority. The Supreme Court thus is the constitutional check or the reins by which the galloping horse of the majority’s will is controlled.
At the moment it seems that the Supreme Court imagines itself to be the people’s court and therefore sovereign. To this end, at times one feels like one has been magically transported into the sci-fi flick ‘Judge Dredd’ from the 1990s. Movie buffs will appreciate the relevance. In my view a people’s court by embodying the majority’s will instead of proceeding on the basis of the law becomes incapable of delivering justice. I fear that in this clash the Supreme Court has increasingly shown a tendency that one has often seen in institutions whose primary preoccupation is not law. Therefore, I humbly pray as a mere citizen of Pakistan to the Lordships to trust us in determining the incompetence of the current government through the court of public opinion and to strengthen us as the people of this republic by providing us a fair and just legal system, which is what we expect from our highest court in the land.